Author Page for Scott Lemieux

I have a follow-up post on the Troy Davis case at TAPPED. Among other things, I discuss the famous Scalia concurrence in which he asserts that there is no constitutional right to bring evidence — no matter how compelling — of actual innocence after one had been validly convicted of a capital crime. But why worry?

I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

Whatta card! And, of course, the governor will meanwhile claim that no actually innocent person could ever be convicted and have this conviction upheld for one whole round of federal habeas appeals — state criminal defendants, of course, never have anything but the best legal representation! — and round and round we go and before you know it some innocent person will be executed.

If the Democratic party’s national leadership continues in its opposition to the strategy Bush has just announced, and if, against expectations, that strategy is successful, Democrats may look forward to another decade or more of losing Presidential elections.

And if you don’t give my $50,000 right now for a share of my Mega Millions ticket, you’ll look really stupid when I win!

I have to agree with Michael against Chris Clarke that I don’t see any basis for the assertion that the post-1992 Republican strategy was to “find out what the disaffected [Perot voters] wanted that the GOP failed to offer, and offer it.” If the Republicans became the party of deficit reduction and protectionism, they have certainly kept it well hidden. (Although on only one of Perot’s two key issues, Michael is right that there’s a better case that Clinton co-opted Perot voters.)

In addition, I think it’s worth nothing that the claim that Perot cost Bush the 1992 election is really not even “arguable.” Perot’s support was much more cross-cutting than Nader’s, and the only state polling data indicates may have flipped to Bush in Perot’s absence was Ohio — which would have left Clinton with a 150 electoral vote margin. There’s no serious empirical basis for the assertion that Perot plyed a decisive role in the 1992 campaign.

…In comments, Rick Perlstein points us to this book, which he says supports Chris’s claims. I admit to being skeptical about the first claim — I really find it hard to believe that Perot swung well over 100 electoral votes, but maybe they have data I haven’t seen — but it is certainly plausible that the GOP was thinking about these voters when crafting the Contract On America. (Of course, there’s also little evidence that the COA had a substantial impact on the election, but at least narrowly Chris’ point was just about what the GOP was trying to do. And evidently it also doesn’t follow that chasing 17% of the electorate isn’t more potentially profitable than chasing 3% of the electorate.) Anyway, I’ll check it out.

Nicole Belle notes that a large number of Democratic Senators haven’t co-sponsored the Habeas Corpus Restoration Act; this doesn’t mean that they will oppose it, of course, but it would be nice to see a more robust list.

Speaking of which, Bean notes below that “because of a recent (1996) law ‘intended to streamline the legal process in death penalty cases, courts have ruled it is too late in the appeals process to introduce new evidence and, so far, have refused to hear it.'” I’m inclined to think that the AEDPA is the worst legislation Clinton signed into law during his tenure, even worse than DOMA (although both are obviously horrible.)

Publius has some sympathy for John McCain’s profound yet futile humiliation and self-abnegation. I do feel it with respect to his daughter; politics requires you to make alliances with ugly people and forget ugly tactics. But where any sympathy I had for McCain vanishes with his reprehensible legitimazation of the Bush administration’s torture and gutting of habeas corpus. It’s not even as if he just quietly sold out; he provided invaluable cover by claiming he wouldn’t compromise and then abjectly selling out. (The irony, of course, being that his preening meant that he would get no credit from the pro-torture-and -arbitrary-power base anyway, so he sold out for nothing.) To hell with him.

Some apologist for the new gilded age claims of St. Derek of Pasta Diving that “I cannot find another ballplayer with that same set of skills.” Yeah, unless he turns to his right and sees the player with vastly more impressive offensive and defensive skills…

Scott McLemee points out that a central issue of the “Late Night Shots” clowns is that exclusivity fails if nobody else actually wants to be a member. This reminds me of the appalling Details article asking “is it OK to demand anal sex?” (Categorical answer, regardless of sex act in question: “No.” You’re welcome.) The point is not that it cannot be mutually enjoyable for many people, but to this particular subset of assholes “mutually enjoyable” would seem to defeat the purpose. As Amanda correctly notes, this is a classic example of patriarchy being bad for everybody, insulting to men as well as women.

HTML points us to this post by digamma. HTML says he “has” me, which is kind of strange because I basically agree with this:

No one on the left ever dreamed that Clinton would create a major progressive domestic policy shift. The most they ever hoped for was that he wouldn’t actively push conservative policies. And he fell well short of that goal.

The Telecommunications Act? Communications Decency? Antiterrorism? Welfare reform? These were all passed with Clinton’s signature and, with the POSSIBLE exception of welfare reform (on which he waffled repeatedly), with his enthusiastic support. You can’t blame the Constitution for that.

This also comes up a lot in debates with my Naderite friends, but while there are any number of valid critiques of Clinton, to attack him for not achieving any major progressive initiatives after 1994 is bizarre; with a Republican Congress this simply wasn’t a possibility.

digamma and HTML, in other words, simply misread the post. I never said that Clinton was beyond criticism — indeed, I specifically said otherwise. What I actually said was that Clinton couldn’t be criticized for not being able to singlehandedly pass major new progressive initiatives, which digramma concedes. If we’re talking about DOMA, the Telecommunications Act, the Antiterrorism and Effective Death Penalty Act, etc., criticize away; I certainly have. But his comment was a non-sequitur, and the claim that I’m “moving the goalposts” by pointing this out bizarre.

Reports on the credibility and journalistic standards of dead-ender hero Michael Yon…are not promising. Which I supposes goes without saying. (I think the definitive warblogger moment was Judy Miller being invited at the keynote speaker at the Pajamas Media launch party. They don’t want good reporters; they want Bush administration propagandists and stenographers.)

Kevin Drum, writing about the Most Dishonest Editorial Ever, argues that “a junior high school geometry student would be embarrassed to produce work like this.” Apparently he hasn’t gotten the latest memo from the Intellectually Serious Yoosta-Bees of the blogosphere — everything that appears in any part of the Wall Street Journal must be accepted as the unquestioned truth, even when it’s a highly unpersuasive defense of a policy written by the wife of the policy’s architect! I hope Kevin will correct the record.

Meanwhile, Ezra asks if the Journal‘s op-ed pages are so mendacious and destructive that it may be worth sacrificing the terrific news pages that lend them unearned credibility. I don’t think I agree, but I admit that it’s tempting…

…Sawicky: “This…is the dumbest thing I’ve ever seen, and I’ve seen a lot.”

Lord Conrad facing 35 years. I’ve never had much sympathy for someone who is so desperate to be part of an anachronistic manifestation of illegitimate hierarchy he would renounce his Canadian citizenship anyway…

Matt beat me to the most obvious response to Jeffrey Rosen’s modified limited hangout on Chief Justice Roberts. Although it’s indeed reasonable to have claimed that Roberts was better than some of the other alternatives, this is quite different than his contemporaneous arguments about Roberts, in which he asserted that the new Chief could shift the court to the left, and was a “gift to principled liberal and conservative defenders of judicial restraint” who liberals should confirm “with gratitude and relief.” I think it’s safe to say that such sentiments are inoperative. What I found particularly puzzling about this implied contradiction between cautious language and doctrinaire conservatism is that Roberts’s predecessor, William “throw Roe from the caboose” Rehnquist, also preferred (as Chief) to hollow precedents rather than to overturn them outright, and was also for the most part a party-line conservative. As a terrific New Republic cover story pointed out, the Alito/Roberts method is, if anything, even worse for liberals than the Scalia/Thomas one: it achieves the same results while attracting less public scrutiny. And if you have any doubts about the phoniness of the Potemkin modesty of Roberts joining in de farco overrulings, it’s worth noting that Alito and Roberts did not join the one “narrowing” opinion of any substantive significance: Kennedy’s refusal to go along with the “color-blind” majority in the school desegregation cases.

While Rosen now concedes that the Court has significantly shifted to the right, he still holds out hope for future consensus on the Court. But this continues to strike me as implausible. Explaining why the Court became more divisive this term, Rosen says that “The Court’s shift to the right was driven by the fact that it took up controversial issues, such as race, abortion, and campaign finance, which it had avoided while waiting for O’Connor’s replacement.” Well, I concede the point; Roberts is more likely to achieve consensus on issues that don’t divide liberal and conservative justices. But I’m not sure that the “new Chief Justice” variable is doing much work here. I’ll save this for a follow-up post, but as far as I can tell there’s no reason to believe that the Court will achieve significantly more consensus in future terms, and there never was any reason to believe that the Roberts Court would herald some new era of “judicial restraint.”